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JUDICIAL: Includes CWA

In Slater Park Land and Livestock, LLC v. U.S. Army Corps of Eng’rs, No. 19-cv-00644-CMA-GPG 2019 WL 5593306 (D. Colo. Oct. 30, 2019), the plaintiff brought suit against the U.S. Army Corps of Engineers (Corps) seeking to prevent the Corps from enforcing a notice of violation (NOV) that had been issued to the plaintiff in 2018 over the construction of a dam on the plaintiff’s property. In 2012, the plaintiff had reconstructed an 1800’s era earth dam across a creek that runs through the plaintiff’s property for the purpose of facilitating irrigation and stock watering. On August 17, 2018, the Corp issued a NOV letter to the plaintiff notifying them that the dam was constructed in violation of § 404 of the Clean Water Act (CWA). Although the NOV put the plaintiff on notice that the dam was unauthorized, it also set forth several remedies the plaintiff could pursue to avoiding incurring disciplinary actions, including restoring the waterway or obtaining and after-the-fact permit. The plaintiff contends that the construction of the dam was exempt from the CWA pursuant to the CWA’s agricultural exemption, and brings this suit seeking injunctive relief, and a declaration that the reconstruction of the dam is exempt from the CWA, and issuing the NOV violated the plaintiff’s due process rights. The Corps brought a motion to dismiss the case, which this order from the court granted.

The Corps made a motion to dismiss the case, arguing that the NOV was not a final agency action that could be subject to judicial review. The court agreed, finding the NOV did not commit the Corps to a particular course of action, and therefore did not qualify as a final decision making. Additionally, the court found that the NOV did not change the legal status of the plaintiff’s activities under the CWA, but merely indicated a violation of the CWA. Therefore, the NOV did not create rights and obligations or impose legal consequences. With respect to the plaintiff’s constitutional claims, the court concluded that such claims could not be adjudicated under the Administrative Procedure Act (APA) if the challenged agency action was not final.

REGULATORY: Includes EPA

ENVIRONMENTAL PROTECTION AGENCY

Final Rule establishing a tolerance for residues of isotianil in or on bananas. Info here.

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Located in Fayetteville, Arkansas, the National Agricultural Law Center serves the nation’s vast agricultural community and is a key partner of the USDA National Agricultural Library. For more information, click here.
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